What place does the law have in what happens privately between consenting adults? Photo: Getty
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Is the government finally ready to legalise BDSM?

The Ministry of Justice has begun a review process into a law that is widely recognised as outdated, archaic in language, and Victorian in its approach. But do they really want to change anything?

The short answer seems to be: not if it can help it. Unfortunately, for those still handcuffed to the inconsistent muddle that passes for law in this area, the Ministry of Justice has just kicked off a process that could result in a spectacular own goal sometime in 2015.

They have officially asked the Law Commission, a “statutory independent body” of some influence when it comes to law-making, to review the law on offences against the person.

In the spotlight is the Offences Against the Person Act 1861 (OAPA), which they admit is widely recognised as outdated, archaic in language, and Victorian in its approach of listing separate offences for unique scenarios. Do we really, they ask, need a specific offence of “impeding a person endeavouring to save himself from a shipwreck”?

Of course, what they don’t mention is the central role this Act has played in shaping the legal landscape in respect of BDSM. For it was under the OAPA that the landmark Spanner case was prosecuted in the 1990s: and despite contrary rulings, it is this verdict that continues to dictate the limits to consensual sex.

Incredible as it may seem to those who have grown up post-Spanner, there was a once-upon-a-time golden age when the prevailing assumption was that pain, inflicted consensually and in pursuit of mutually satisfying erotic outcomes was permissible. That was not an unreasonable point of view. After all, you could – you may still – beat an opponent senseless in a boxing ring and, providing all is done in accordance with the rules, and consensually, there is no problem.

Why should a beating of a sexual nature be any different?

This changed when a police raid in 1987 found a videotape of a number of men involved in some fairly heavy sado-masochist activity, including beatings, genital abrasions and lacerations. The police were shocked: was this, perhaps, the smoking gun; the first definitive instance of a snuff movie (a film in which one or more of the participants are intentionally murdered on camera)? After much investigation, the truth turned out to be rather different.

The on-camera action was consensual. A form of erotic “play”! A more enlightened police force might have quietly tiptoed away. But this was Manchester, then the beat of committed and upright Christian Chief Constable James Anderton: a man who had already established a reputation for clamping down on gay clubs on his patch. The police had already spent a small fortune – estimated to be close to $4m – on their “Operation Spanner”. There was no way someone wasn’t going to pay.

And that is exactly what 16 gay men did when, in December 1990, the courts handed down sentences ranging from fines to up to four and a half years in prison apiece. Some later had their sentences reduced on appeal: but this was a one-off discount, based on the fact that for the most part, participants were genuinely unaware that their actions were illegal. We have been warned, and should expect little leniency in future.

Many of those convicted were sent down on the basis of their own words. So sure were they that they had committed no offence that they freely incriminated themselves, providing the police with the evidence that would later be used to convict them.

The case became something of a cause celebre in both BDSM and LGBT circles, with failed appeals before the House of Lords (1992), and the European Court of Human Rights (1997). In fact, the 1992 verdict was a “damn close-run thing”, with the views of police and authorities endorsed by just three of the five Lords sitting. One vote the other way, and the recent history of UK sexuality might have been a very different thing indeed.

There have, too, been apparently inconsistent rulings since. Most notable was the case of R v Wilson, in which it was ruled that consensual branding, between husband and wife, was not unlawful. The judge ruled that a husband who had branded his wife with a hot knife while the two were consensually re-enacting a scene from The Story of O was not guilty of an offence.

Overturning an original conviction, the Court of Appeal stated: “Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, a proper matter for criminal investigation, let alone criminal prosecution”.

These remarks, while outwardly positive for the BDSM community, have done little to dispel the view that the law is not even-handed between gay and straight in sexual matters.

Besides, the Spanner standard – that BDSM is lawful so long as any injury, pain or mark is no more than “trifling and transitory” – is what tends to be applied by police and courts. This echoes the view of Lord Templeman, one of the triumvirate of Lords who delivered the 3-2 thumbs up to the Spanner convictions in 1992, that “pleasure derived from the infliction of pain is an evil thing”.

Or as the Law Commission put it a consultation, Consent in the Criminal Law, in 1995: the law was now “unprincipled” and thoroughly inconsistent. Individuals might happily and lawfully consent to an assault for medical reasons (surgery) or on the sporting field. They could consent to piercing, tattooing and presumably, branding.

They might even, following 19th-century precedent which treated the practice of flagellation in the Christian church as a lawful activity, consent to the infliction of pain for religious reasons. All of the above, plus, more recently, television that makes a show of ritualised celebrity humiliation is lawful. But only so long as sex is not involved.

This approach, they argued, was not without its costs: whole communities were alienated from the police, with many perennially suspicious that the authorities made disproportionate use of the law on BDSM to crack down on gay clubs and events.

The outcome, though, as with so many other researched and evidence-based consultations, was less than zero.

An incoming Labour government was not interested in liberalising the law around sexual consent. The prevailing ethos may be gauged from the deliberations of the Sexual Offences Review Team (SORT), which was established by the Home Office to carry out a much-needed review of sexual offences shortly after. It was SORT that laid the groundwork for the Sexual Offences Act 2003, and which argued for important reforms of the law on rape: for instance, substituting “reasonable belief in consent” as the test for the previous troubling “honest belief”. 

Although the focus of the SORT was on consent, it was much more concerned with negotiating the individual’s right to withhold consent than endorsing the suspiciously liberal views of the Law Commission. Contemplating necrophilia, for instance, they conceded that there was no evidence it ever happened or was even a problem. But discovering there was not actually a law against it, and considering the very idea repugnant, they proposed one.

So the law on BDSM stuck: inconsistent, outdated, archaic. If government has its way, it seems likely that that inconsistency will stay too. The question is: will this consultation prove a somewhat larger can of worms than they expect?

The last consultation attracted more public interest than almost any other before or since. Campaigning organisation, Spanner, which mobilised much public support on this issue twenty years back is even now preparing to rumble. Again.

The issue is live once more. With political uncertainty on the cards for some while to come, it is possible that the legal establishment is about to receive a (non-consensual) caning.

Jane Fae is a feminist writer. She tweets as @JaneFae.

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The 11 things we know after the Brexit plan debate

Labour may just have fallen into a trap. 

On Wednesday, both Labour and Tory MPs filed out of the Commons together to back a motion calling on the Prime Minister to commit to publish the government’s Brexit plan before Article 50 is triggered in March 2017. 

The motion was proposed by Labour, but the government agreed to back it after inserting its own amendment calling on MPs to “respect the wishes of the United Kingdom” and adhere to the original timetable. 

With questions on everything from the customs union to the Northern Irish border, it is clear that the Brexit minister David Davis will have a busy Christmas. Meanwhile, his declared intention to stay schtum about the meat of Brexit negotiations for now means the nation has been hanging off every titbit of news, including a snapped memo reading “have cake and eat it”. 

So, with confusion abounding, here is what we know from the Brexit plan debate: 

1. The government will set out a Brexit plan before triggering Article 50

The Brexit minister David Davis said that Parliament will get to hear the government’s “strategic plans” ahead of triggering Article 50, but that this will not include anything that will “jeopardise our negotiating position”. 

While this is something of a victory for the Remain MPs and the Opposition, the devil is in the detail. For example, this could still mean anything from a white paper to a brief description released days before the March deadline.

2. Parliament will get a say on converting EU law into UK law

Davis repeated that the Great Repeal Bill, which scraps the European Communities Act 1972, will be presented to the Commons during the two-year period following Article 50.

He said: “After that there will be a series of consequential legislative measures, some primary, some secondary, and on every measure the House will have a vote and say.”

In other words, MPs will get to debate how existing EU law is converted to UK law. But, crucially, that isn’t the same as getting to debate the trade negotiations. And the crucial trade-off between access to the single market versus freedom of movement is likely to be decided there. 

3. Parliament is almost sure to get a final vote on the Brexit deal

The European Parliament is expected to vote on the final Brexit deal, which means the government accepts it also needs parliamentary approval. Davis said: “It is inconceivable to me that if the European Parliament has a vote, this House does not.”

Davis also pledged to keep MPs as well-informed as MEPs will be.

However, as shadow Brexit secretary Keir Starmer pointed out to The New Statesman, this could still leave MPs facing the choice of passing a Brexit deal they disagree with or plunging into a post-EU abyss. 

4. The government still plans to trigger Article 50 in March

With German and French elections planned for 2017, Labour MP Geraint Davies asked if there was any point triggering Article 50 before the autumn. 

But Davis said there were 15 elections scheduled during the negotiation process, so such kind of delay was “simply not possible”. 

5. Themed debates are a clue to Brexit priorities

One way to get a measure of the government’s priorities is the themed debates it is holding on various areas covered by EU law, including two already held on workers’ rights and transport.  

Davis mentioned themed debates as a key way his department would be held to account. 

It's not exactly disclosure, but it is one step better than relying on a camera man papping advisers as they walk into No.10 with their notes on show. 

6. The immigration policy is likely to focus on unskilled migrants

At the Tory party conference, Theresa May hinted at a draconian immigration policy that had little time for “citizens of the world”, while Davis said the “clear message” from the Brexit vote was “control immigration”.

He struck a softer tone in the debate, saying: “Free movement of people cannot continue as it is now, but this will not mean pulling up the drawbridge.”

The government would try to win “the global battle for talent”, he added. If the government intends to stick to its migration target and, as this suggests, will keep the criteria for skilled immigrants flexible, the main target for a clampdown is clearly unskilled labour.  

7. The government is still trying to stay in the customs union

Pressed about the customs union by Anna Soubry, the outspoken Tory backbencher, Davis said the government is looking at “several options”. This includes Norway, which is in the single market but not the customs union, and Switzerland, which is in neither but has a customs agreement. 

(For what it's worth, the EU describes this as "a series of bilateral agreements where Switzerland has agreed to take on certain aspects of EU legislation in exchange for accessing the EU's single market". It also notes that Swiss exports to the EU are focused on a few sectors, like chemicals, machinery and, yes, watches.)

8. The government wants the status quo on security

Davis said that on security and law enforcement “our aim is to preserve the current relationship as best we can”. 

He said there is a “clear mutual interest in continued co-operation” and signalled a willingness for the UK to pitch in to ensure Europe is secure across borders. 

One of the big tests for this commitment will be if the government opts into Europol legislation which comes into force next year.

9. The Chancellor is wooing industries

Robin Walker, the under-secretary for Brexit, said Philip Hammond and Brexit ministers were meeting organisations in the City, and had also met representatives from the aerospace, energy, farming, chemicals, car manufacturing and tourism industries. 

However, Labour has already attacked the government for playing favourites with its secretive Nissan deal. Brexit ministers have a fine line to walk between diplomacy and what looks like a bribe. 

10. Devolved administrations are causing trouble

A meeting with leaders of Scotland, Wales and Northern Ireland ended badly, with the First Minister of Scotland Nicola Sturgeon publicly declaring it “deeply frustrating”. The Scottish government has since ramped up its attempts to block Brexit in the courts. 

Walker took a more conciliatory tone, saying that the PM was “committed to full engagement with the devolved administrations” and said he undertook the task of “listening to the concerns” of their representatives. 

11. Remain MPs may have just voted for a trap

Those MPs backing Remain were divided on whether to back the debate with the government’s amendment, with the Green co-leader Caroline Lucas calling it “the Tories’ trap”.

She argued that it meant signing up to invoking Article 50 by March, and imposing a “tight timetable” and “arbitrary deadline”, all for a vaguely-worded Brexit plan. In the end, Lucas was one of the Remainers who voted against the motion, along with the SNP. 

George agrees – you can read his analysis of the Brexit trap here

Julia Rampen is the editor of The Staggers, The New Statesman's online rolling politics blog. She was previously deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines.